110 Tenn. 482 | Tenn. | 1903
delivered the opinion of the Court.
Charles McNulty, plaintiff in error, upon his plea of guilty to a warrant issued by a justice of the peace of Shelby county, January 15, 1903, charging him with assault and battery'upon one Cottrell Childress upon a previous day of that month, was fined $50, and committed to the workhouse. Childress died about 30 days thereafter from the injuries sustained from the assault and battery committed upon him, and the plaintiff in error was indicted for his murder in the criminal court of Shelby county, and upon trial was found guilty of voluntary manslaughter, and his punishment fixed at two years in the State penitentiary.
After the State had closed its case, and the plaintiff in error had been examined as a witness in his own behalf¿ his counsel tendered to the court a plea -stating the proceedings before the justice of the peace, find relying upon them, and the judgment there given against the plaintiff in error, as a former conviction, in bar of the indictment under' which he was then being tried, without any affidavit explaining why it was not tendered at the proper time. The trial judge refused to allow the plea to be filed, and directed the trial to proceed upon the plea of not guilty. This action is now assigned as error.
There was no error in the refusal of the trial judge to allow the plea tendered to be filed. It should have been tendered, along with the plea of not
The indictment in this case is for a felony — murder committed upon Cottrell Childress — a greater offense, containing other and materially different elements from the former one, and requiring different proof to convict, and which had not been committed and was not in existence when the'' first trial was had, Childress being then, alive. The íavo offenses are entirely distinct, and the identity necessary to sustain a plea of the former con-Auction is Avholly wanting. '
It is well-settled law that a conviction of a misdemeanor included in a felony is no bar to a prosecution for the felony, and certainly this rule must prevail when the felony is not consummated until after the conviction of the misdemeanor, as was the murder in this case by the death of the assaulted party after the judgment before the justice of the peace. Mikels v. State, 3 Heisk., 321; Clark’s Crim. Prac., pp. 402, 403. It is, hoAvever, insisted by counsel for plaintiff in error
This statute will not bear the construction insisted upon, but it is plainly to the contrary. It is unmistakably provided that a conviction under the small offense law for a misdemeanor included in a felony may be pleaded in bar of another conviction of the same misdemeanor under an indictment against the defendant for the felony involved, and upon which he is being tried for such felony. It does not provide that a conviction for the misdemeanor shall be a bar to a prosecution for the greater offense, the felony, and was never intended to have that effect. It will not be presumed that the general assembly intended to provide such a convenient mode for felons to escape their merited punishment.
The failure to file a plea at the proper time being unexplained, and no merits being shown, the assignment of the error is overruled, and the judgment affirmed.